EULA

ACUMERA END USER SOFTWARE AND HARDWARE LICENSE AGREEMENT

NOTICE — THIS END USER LICENSE AGREEMENT (“EULA” OR “AGREEMENT”) IS A LEGAL DOCUMENT BETWEEN ACUMERA INC. (“ACUMERA” OR “LICENSOR’) AND THE LEGAL ENTITY THAT ACQUIRED THE ACUMERA SOFTWARE AND/OR HARDWARE FOR USE BY AN END USER (“YOU”, “YOUR”, “CUSTOMER” AND “LICENSEE”).

READ THIS BEFORE INSTALLING, USING OR OTHERWISE ACCESSING ACUMERA’S PROPRIETARY HARDWARE OR SOFTWARE, INCLUDING SOFTWARE AS A SERVICE (“SaaS”), TRIAL OR EVALUATION AND ACCOMPANYING DOCUMENTATION. THIS EULA GOVERNS YOUR USE OF THE ACUMERA HARDWARE (“HARDWARE”), ANY SOFTWARE THAT IS INCLUDED IN THE HARDWARE AND ANY STANDALONE SOFTWARE THAT IS PROVIDED WITHOUT HARDWARE FOR USE ON YOUR HARDWARE, INCLUDING VIRTUAL MACHINE (“VM”) SOFTWARE OR ENDPOINT SOLUTIONS (“ENDPOINT”) (COLLECTIVELY, “SOFTWARE”), ANY SOFTWARE AS A SERVICE, AND OTHER SUBSCRIPTION-BASED SERVICES.

THE SOFTWARE IS COPYRIGHTED AND IS LICENSED, NOT SOLD, TO YOU BY ACUMERA. BY CLICKING ON THE “ACCEPT” OR “I AGREE” (OR EQUIVALENT) BUTTON OR SIGNING BELOW, OPENING THE PACKAGE, DOWNLOADING, INSTALLING, CREATING AN ORCHESTRATOR ACCOUNT, USING OR OTHERWISE ACCESSING THE SOFTWARE OR SERVICES, INDICATES THAT YOU HAVE READ, UNDERSTAND, ACCEPT, AGREE TO BE BOUND BY THE TERMS AND CONDITIONS, AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE LEGAL ENTITY IF AT ANY TIME YOU DO NOT ACCEPT THESE TERMS, YOU MUST IMMEDIATELY DELETE THE SOFTWARE, AND CEASE USING OR ACCESSING THE SOFTWARE AND/OR HARDWARE.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH LEGAL ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IN SUCH EVENT “YOU” AND “YOUR” AS USED IN THIS AGREEMENT REFER TO SUCH ENTITY. IF AT ANY TIME YOU DO NOT ACCEPT THESE TERMS, YOU MUST IMMEDIATELY DELETE THE SOFTWARE, AND CEASE USING OR ACCESSING THE SOFTWARE AND/OR HARDWARE.

1. License Grant

“Software” means Company’s proprietary software, including SaaS. The term Software shall include any updates, additions or modifications to the Software. “Services” means the cloud-based network controller platform made available by Acumera. Subject to the terms of this Agreement, including payment of applicable fees, you have a non-exclusive and nontransferable right to use: the Software or Hardware for non-commercial (e.g. not for resale or rental or the like) or evaluation purposes, and only for the permitted number of servers, network devices or workstations as designated in the applicable Statement of Work (SOW), Work Order or Purchase Order (hereinafter “Order”) and for the term designated in the applicable Order between Acumera and Customer or between Customer and authorized Acumera partners. All Orders shall incorporate this agreement by reference. In connection with the License, Acumera also grants to Customer the right to use, print, and copy the accompanying on-line read-me and help files regarding the use and customization of the Software or Hardware as reasonably necessary to make use of the Software or Hardware in accordance with the License. The Software is designed for use on-line in conjunction with your web browser and internet access. You are allowed only one account under this license, but you may access your Acumera account on multiple computers.

2. Scope of Use and Acceptable Use Policy

Your license is conditioned on the proper use of the Software or Hardware. Any use of the Software or Hardware in violation of permitted uses is in breach of this Agreement and is unlicensed. For Software not embedded on Hardware, Customer’s use of the Software shall not exceed the permitted number of servers, network devices or workstations as designated in the applicable Order. Customer may move Software not supplied with Hardware at any time to different servers, network devices or workstations so long as Customer completely removes the Software from the former servers, network devices or workstations, and the total number of computers or devices does not at any time exceed the permitted number of servers, network devices or workstations. Customer may only use Software: (i) for so long as Customer has fully paid or remains current in the payment of applicable fees (if any, as in the case of an evaluation period); and (ii) for which Customer has received a license key (“License Key”). The Software is “in use” on a device when it is loaded into the temporary memory (i.e. RAM) or installed into the permanent memory (e.g. hard drive, CD-ROM or other storage device) of that device, except that a copy installed on a network server for the sole purpose of distribution to other devices is not “in use.” You are responsible for all acts and omissions of the users of your account and all activities taken through the use of your account.

(a) Prohibited content, uses and activities include, without limitation, any use of its Products, Services or Content in a manner that, in Acumera’s reasonable judgment, involves, facilitates, or attempts any of the following:

• violating any law;
• displaying, performing, sending, receiving or storing any content that is obscene, inappropriate, offensive, or otherwise objectionable, even if the material or its dissemination is lawful;
• harassing any person or advocating or encouraging violence of any kind against any person, entity or government;
• infringing, violating or misappropriating another’s rights;
• obtaining unauthorized access to, or interfering by any means with, any user, system, network, service, or account, including evasion of filters or violation of the security or integrity of any network or system;
• distributing computer viruses or malware of any kind; or
• sending, receiving or supporting email messages that are unsolicited, deceptive, anonymous, excessively voluminous or that contain falsified identifying information, including spamming and phishing.

(b) You have no right to: (i) allow any unauthorized person to access or use the Software, Hardware or Services through your account; (ii) reverse engineer or attempt to discover any code or trade secrets related to any part of the Software, Hardware or Services; (iii) modify or create derivative works based on any aspect of the Software, Hardware or Services, except by your use of the built-in splash page editor or other built-in tools that Acumera may offer to you to customize the user interface components of the networks you create; (iv) use the Software, Hardware or Services in any way that interferes with, disrupts, damages, or accesses in any unauthorized manner the servers, networks, data or other of our properties or services of or those of any other person or entity; (v) access or use any part of the Software, Hardware or Services to develop a competitive service or product; or (vi) use the Software, Hardware or Services outside the scope of the intended rights granted in this Agreement (collectively “Unauthorized Activities”).

(c) You are responsible to ensure that use of the Acumera Software, Hardware or Services is in compliance with all applicable laws, including laws where the Software or Service is uploaded, hosted, stored, accessed or used and to implement necessary restrictions to prohibit use by any individual (e.g. restrictions on access by minors) or in any jurisdiction, as required to comply with such laws. Similarly, Acumera reserves the right to take all actions it deems appropriate to comply with applicable laws.

(d) Suspension of Service. You shall not violate Acumera’s Acceptable Use Policy. You further agree that Acumera may suspend or revoke your access to the Service upon notice (which may be made by email or telephone) if Acumera reasonably concludes that you are using the Service to engage in illegal activity and/or your use of the Service is causing immediate, material and ongoing harm to others. In the event that Acumera suspends your access to the Service, Acumera will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and work with you to resolve the issues requiring the suspension of Service. You agree that Acumera shall not be liable to you, nor to any third-party, for any suspension of the Service under this Section. Acumera reserves the right to delete any offending content, at any time. Acumera will notify you of any suspension or revocation action.

3. Evaluation License

In the event you obtained a trial or evaluation version of the Software, Hardware or Services, you will be awarded a license for the length of time as designated in the applicable order (“Trial Period”). You may use the Software, Hardware or Services for internal noncommercial purposes, solely to evaluate the suitability of the Software, Hardware or Services for your needs. Upon the expiration of the Trial Period, you must either purchase a license, or immediately cease using and/or accessing the Software, Hardware or Services, and, if applicable, permanently delete the Software or return the Hardware. If you do not complete a purchase prior to the expiration of the Trial Period provisions of this Agreement, all rights and licenses shall terminate pursuant to Section 14.

4. Consent to Use Data

You agree that Acumera may collect and use technical data and related information, including but not limited to, technical information about your device, system and application software, and peripherals. Acumera may use this information in a form that does not personally identify you, to operate, provide, improve, and develop the Software, and to prevent or investigate fraudulent or inappropriate use of the Software.

5. Audit Rights

Customer will maintain accurate records of its use of Software during the term of this Agreement. Customer grants to Acumera, or its independent accountants and auditors, the right to examine its books, records, networks, systems, devices, and accounts during Customer’s normal business hours to verify compliance with the License. In the event such audit discloses that the permitted number of servers, network devices or workstations is exceeded, or that Customer is otherwise in breach of this Agreement, Customer shall promptly pay to Acumera the appropriate License fee for the additional devices, plus the cost of the audit if the underpayment totals more than five percent (5%) of the total License fee actually owed. At Acumera’s option, Acumera may immediately terminate this Agreement for failure to pay the required License fee and/or any other breach of this Agreement.

6. Third-Party Software/Open Source (“Open Source Software”)

Acumera Software may incorporate and use third-party and open source software (“Open Source Software”). Customer acknowledges that use of such Open Source Software is required for effective use of the Software and such use shall be governed by third-party’s license agreement. Acumera is not responsible for any third-party’s software and shall have no liability for Customer’s use of such third-party software. Nothing in this Agreement limits Customer’s rights under, or grants Customer’s rights that supersede, the terms and conditions of any applicable Customer license for the Open Source Software. However, the disclaimer of warranty and limitation of damages provisions in this Agreement will apply to all Software in this distribution. If required by any license for Open Source Software, Acumera makes such Open Source Software, and Acumera’s modifications to that Open Source Software, available by written request at the notice address specified below.

7. Third-Party Services

As a convenience to its customers, Acumera may provide links or integrations to services or products offered by third parties. You may wish to use such services or products in connection with your use of Software, Hardware or Services. Each of such third-party services or products is provided to you by the provider of such services pursuant to separate agreements between you and the provider of such services or products. Acumera makes no representation or warranty with respect to any third-party service or product, and Acumera assumes no liability with respect to your use of any third-party service or product.

8. Intellectual Property Ownership

You agree that Acumera shall retain all rights, title and interest, including all intellectual property rights, in and to the Software and Service, and each of its components and features. You agree that you neither own nor acquire any claim or right of ownership to the Software or Service or to any related patents, copyrights, trademarks or other intellectual property. Acumera retains all right, title and interest in the Software and Service at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy of the Software or Service. All content accessed through the Software or Service is the property of the applicable content owner and may be protected by applicable copyright law. This license gives you no rights to such content.

9. Confidentiality

Customer agrees that Confidential Information shall include: (i) the Software, Hardware and Service, including the specific design and structure of individual programs, constitute trade secrets, intellectual property, and/or copyrighted material of Acumera; and (ii) all information that you learn about the Software or Services arising out of your access to or use of the Software or Services. Customer agrees not to disclose, provide or otherwise make available such Confidential Information, including, but not limited to, trade secrets, intellectual property, proprietary rights, or copyrighted material in any form to any third-party without the prior written consent of Acumera. Customer agrees to implement reasonable security measures to protect such Confidential Information. Customer also may not release the results of any performance or functional evaluation of any program of the Software, Hardware or Services to any third-party without prior written approval of Acumera for each such release. Customer may not use Acumera’s name or other trademarks or refer to Acumera or Acumera’s products or services directly or indirectly in any papers, articles, advertisements, promotions, sales presentations, news releases or releases to any third-party without the prior written approval of Acumera for each such use. Acumera may identify Customer by name and associated logo as a client on Acumera’s website and in other marketing materials and press releases.

10. Maintenance and Support

Acumera will not provide any maintenance or support services under this Agreement. You acknowledge that Acumera has no express or implied obligation to release updates, modifications, or additions to the Software, Hardware or Service. Acumera may offer support services which will be offered under the terms and conditions of the applicable Order. Where applicable, Acumera reserves the right to change, add or remove any functionality, features and/or other aspects of its products, from time to time. The Services may be unavailable to you from time to time for maintenance and/or upgrades. Acumera will use commercially reasonable efforts to minimize any such disruptions.

11. Software as a Service

When using Software that is hosted by Acumera or provided as part of Hardware (“Service”):

(a) you agree: (i) to create an account with Acumera prior to accessing Software or the Service with complete and accurate information, (ii) keep information provided to Acumera updated at all times, (iii) to protect your account from all unauthorized account access, including appropriately safeguarding your password; (iv) to be solely responsible for the management of all data accessed by you; and (v) that Acumera is not liable for any damages relating to lost or damaged data;

(b) you agree not to: (i) use the Service in a way that violates any applicable laws or regulations; (ii) distribute viruses or other harmful or malicious computer code; (iii) engage in any conduct that disrupts or impedes the Service; (iv) engage in “screen scraping”, “database scraping”, “data mining”, or any other activity with the purpose of obtaining lists of users or other information from the Service or that uses web “bots” or similar data gathering or extraction methods;

(c) Acumera can suspend your access to the Service if, in its sole discretion, Acumera believes: (i) there is risk to the security or privacy of your account; (ii) there is a threat to the security or integrity of Acumera’s network or the Service; and (iii) suspension of Service is needed to protect the rights, property or safety of Acumera, its users or the public or is required by law.

12. Limited Warranty

For ninety (90) days after the Effective Date (“Warranty Period”), Acumera warrants that Software and Hardware, when used in accordance with the instructions provided with the Software or Hardware, shall operate as described in all material aspects of its intended use. Acumera does not warrant that Customer’s use of the Software or Hardware will be error-free or uninterrupted. Acumera, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, shall: (i) correct any reproducible error in the Software or Hardware reported to Acumera by Customer in writing during the Warranty Period; or (ii) refund fees paid for the defective Software or Hardware, if Acumera determines that it is unable to correct the error or replace the Software or Hardware, in which case this Agreement and Customer’s right to use the Software or Hardware shall terminate.

13. Amendments

Acumera reserves the right to change the terms of service under this EULA from time to time at its sole discretion. Your use of Acumera software will be subject to the most current terms of service available at the time of usage. Any notices or changes will be posted at: https://www.acumera.com/eula/. Your continued use of the Software, Hardware or Services following a notice of a change in the terms and conditions will constitute your acceptance of such changes. If you do not agree to any such change, you agree to notify us and stop using the Software, Hardware and/or Services.

14. Term and Termination

This Agreement is effective upon your installing, accessing or using the Software or Services. This Agreement shall continue in effect in accordance with the terms of the applicable Order. This license will automatically terminate if you fail to comply with its terms and conditions of this Agreement. This Agreement and the license herein will terminate immediately, without notice from Acumera, if Customer fails to comply with any provision of this Agreement or if Customer takes any action in derogation of the rights of Acumera. Acumera may terminate this Agreement should any Software or Hardware become, or in Acumera’s reasonable opinion is likely to become, the subject of a claim of intellectual property infringement or trade secret misappropriation. Acumera may also terminate this Agreement upon its failure to receive from or on behalf of Customer, timely payment in full of all fees in the applicable Order.

(a) This Agreement and the license will terminate at the end of the Trial Period if obtained for evaluation purposes; and

(b) Upon any termination of this Agreement, Customer will cease all use of, and destroy (or permanently erase), all copies of the Software. The following Sections of this Agreement shall survive termination: Audit Rights, Third Party/Open Source, Intellectual Property Ownership, Confidentiality, Term and Termination, Disclaimers, High Risk Use, Damages Limitation, Indemnity, Export Controls, U.S. Government Restricted Rights, Waiver, Cumulative Remedies, Severability, Applicable Law.

15. Disclaimers

THE SOFTWARE, HARDWARE AND SERVICES ARE NOT REPRESENTED AS BEING COMPLIANT WITH ANY FEDERAL OR STATE LAW AND ACUMERA ACCEPTS NO RESPONSIBILITY OR LIABILITY FOR THE MATERIAL BEING DEEMED INCONSISTENT WITH ANY STATUTE, RULE, REGULATION, OR ANY OTHER LEGAL GUIDANCE. NOTHING IN THE MATERIAL SHALL BE CONSTRUED AS A CERTIFICATION OR ACCREDITATION AS TO CYBER-SECURITY STANDARDS. ACUMERA EXPRESSLY DISCLAIMS ANY REPRESENTATIONS MADE BY THE LICENSEE OR CUSTOMER AS TO THE SOFTWARE, HARDWARE OR SERVICES MEETING ANY FEDERAL REQUIREMENTS.

THE EXPRESS WARRANTIES HEREIN ARE THE ONLY WARRANTIES APPLICABLE TO THE SOFTWARE, HARDWARE AND SERVICES. ACUMERA AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE, HARDWARE AND SUPPORT SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE (INCLUDING TRIAL PERIOD), TRADE PRACTICE OR COURSE OF PERFORMANCE WHICH ARE HEREBY DISCLAIMED. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTION 12, THE SOFTWARE, SERVICES AND HARDWARE ARE PROVIDED “AS IS” WITH ALL FAULTS AND DEFICIENCIES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ACUMERA OR ITS AUTHORIZED REPRESENTATIVE(S) SHALL CREATE A WARRANTY.

16. Services Provided Through Partner, Managed Service Provider or Reseller

If Customer acquired the Software or Hardware through a Partner, Managed Service Provider or Reseller (“Partner/MSP/Reseller”), Customer acknowledges that: (i) payment and delivery terms for the Software or Hardware must be established separately and independently between the Customer and the Partner/MSP/Reseller; (ii) this EULA constitutes the entire Agreement between the Customer and Acumera regarding the rights and use of the Software, Hardware or Service as described above and is controlling; (iii) the terms and conditions of any Order or any other agreement between the Customer and the Partner/MSP/Reseller are not binding on Acumera; (iv) the Partner/MSP/Reseller is not authorized to alter, amend or modify the terms of this EULA or to otherwise grant any license or other rights relating in any way to the Software, Hardware or Service. Customer further acknowledges that Acumera makes no representation or warranty with regard to any services provided by any Partner/MSP/Reseller, or any actions or failures to act by any Reseller and accepts no liability whatsoever for services provided by Partner/MSP/Reseller.

17. High Risk Use

CUSTOMER SHALL NOT USE THE SOFTWARE, HARDWARE OR SERVICES IN ANY APPLICATION OR SITUATION WHERE A SOFTWARE, HARDWARE OR SERVICES FAILURE COULD LEAD TO DEATH OR SERIOUS BODILY INJURY OF ANY PERSON, OR TO SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). ACUMERA AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES, AND ACUMERA AND ITS LICENSORS SHALL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE, HARDWARE OR SERVICES.

18. Force Majeure

Acumera is not liable for failure to perform its obligations, if such failure is as a result of: (i) acts of God (including but not limited to fire, flood, earthquake, storm, hurricane, typhoon or other natural disaster); (ii) war, riot, invasion, act of foreign enemies, hostilities (regardless of whether war is declared); (iii) civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, explosion; (iv) contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active or toxic explosive; (v) nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout, boycott; or (vi) slowdown or interruption or failure of electricity or telephone service, acts of state or governmental action prohibiting or impeding from performing its respective obligations under the contract.

19. Damages Limitation

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL ACUMERA, ITS AUTHORIZED DISTRIBUTORS, OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ACUMERA, ITS AUTHORIZED DISTRIBUTORS, OR ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF ACUMERA, ITS AUTHORIZED DISTRIBUTORS, OR ITS SUPPLIERS, TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE FEE(S) ACTUALLY PAID BY CUSTOMER TO ACUMERA FOR THE TWELVE MONTHS PRECEDING THE RELEVANT CLAIM. IF SOFTWARE OR SERVICES ARE BEING USED FOR EVALUATION OR LABORATORY PURPOSES, IN NO EVENT SHALL ACUMERA HAVE ANY LIABILITY WHATSOEVER TO THE CUSTOMER. THESE LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.

20. Indemnity

You agree to indemnify and hold Acumera and its affiliates, officers, agents, employees, co-branders or other partners, harmless from any claim or demand, including reasonable attorney’s fees, made by any third-party due to or arising out of the use of Acumera Software, Hardware or Services, your violation of this EULA or your violation of any rights of another person or entity. You hereby acknowledge that, notwithstanding anything to the contrary in this Agreement, Acumera shall not be responsible to indemnify you for any claims asserted by any third-party, or by you, in connection with third-party software, open source material, equipment obtained from a third-party by you, or equipment not owned or manufactured by Acumera, modifications to the Software or Hardware other than by Acumera, technology provided to Acumera by you, or related to the implementation of any government or industry standard. Acumera will indemnify, and, in its sole discretion, defend, you for suits or actions against you that claim (i) direct infringement of a patent or copyright by the Hardware or Software or that the Hardware or Software embodies trade secrets misappropriated by Acumera, and (ii) such infringement or misappropriation against the Software and/or Hardware alone (an “Indemnified Item”) and not in combination with any other software or equipment. Acumera may, at its sole discretion and at its expense: (i) secure the right of continued use of the Indemnified Item, or (ii) replace or modify the Indemnified Item to make it non-infringing or without misappropriation or (iii) if neither of the foregoing can be accomplished by Acumera, and only in such event, then upon at least 180 days’ prior written notice to you, Acumera may terminate this Agreement. Upon such termination, Acumera will promptly refund all applicable license and maintenance fees paid by you for the then-current term or renewal term pursuant to which the Software, Hardware or Service was provided, and any applicable prepaid Software or Service charges and fees for the affected deliverable. As a condition of Acumera’s obligations under this Section 20, You must: (i) provide Acumera with prompt written notice of any claim of infringement by an Indemnified Item; (ii) agree to Acumera exercising sole control over the defense and settlement of any such claims; and (iii) provide full and timely cooperation at Acumera’s request. This Section 19 shall be subject to the Damages Limitation in Section 18, above.

21. Export Controls

All Software, Hardware, documentation, documents, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import as may be required after delivery to Customer. The Software, Hardware, and the underlying information and technology may not be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

22. U.S. Government Restricted Rights

The Licensed Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. If the Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government’s rights in the Software and Documentation will be only as set forth in this Agreement.

23. Assignment

Customer will not assign this Agreement or any of its rights under this Agreement, directly, by operation of law or otherwise, without our prior written consent. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

24. Waiver

The waiver by Acumera of a breach or default in any of the provisions of this EULA shall not be construed as a waiver of any subsequent breach of the same or other provisions; nor shall any delay or omission on the part of either you or Acumera serve to eliminate or excuse or avail itself of any right, power or privilege that it has or may have hereunder, or operate as a waiver of any breach or default.

25. Section Headings

The section headings in this EULA are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of any such section, nor in any way affect this EULA.

26. Cumulative Remedies

Except as otherwise provided herein, the remedies provided under this EULA are cumulative and shall not exclude any other remedies to which you or Acumera may be fully entitled.

27. Entire Agreement and Severability

This Agreement constitutes the entire agreement. No modification or waiver of this Agreement shall be binding unless it is in writing and signed by both parties. To the extent that any law, statute, treaty or regulation by its terms, as determined by a court, tribunal, arbiter or other governmental authority of competent jurisdiction, conflicts with the terms of this EULA, the conflicting terms shall be superseded only to the extent necessary by the terms required of such law, statute, treaty or regulation. If any provision of this EULA shall otherwise be unlawful, void or for any reason unenforceable, then that provision shall be enforced to the maximum extent permissible so as to affect the intent of Acumera under this EULA. In either case, the remainder of this EULA shall continue in full force. This Agreement supersedes any and all prior agreements between Licensor and Licensee regarding Licensee’s right to use the Software.

28. Applicable Law

This license will be governed by the laws of the State of Texas, without reference to conflicts of laws principles. The United Nations Convention on Contracts for the Sale of Goods does not apply to this license.

If you have any questions, you may contact:

Acumera Inc.
www.acumera.com
3307 Northland Dr.
Suite 500
Austin, TX 78731
512.687.7410
Email: sales@acumera.com